National Union of Hospitality Catering and Tourism Industries Employees v Sheraton Resorts Denarau Island [2005] FJAT 8; Award 09 of 2005 (3 February 2005)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 9 OF 2005

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

NATIONAL UNION OF HOSPITALITY CATERING AND
TOURISM INDUSTRIES EMPLOYEES

AND

SHERATON RESORTS DENARAU ISLAND

NUHCTIE: Mr. T Naivaluwaqa
Sheraton: Mr. H Nagin / Ms R Singh

DECISION

This is a dispute between the National Union of Hospitality Catering & Tourism Industries Employees (the Union) and Sheraton Resorts Denarau Island ( the Employer) concerning the termination of employment of Mr. Rajesh Karan (the Grievor).

A dispute was reported by the Union on 15 March 2004. The report was accepted by the Chief Executive Officer (formerly known as the Permanent Secretary) who referred the dispute to a Disputes Committee. As a consensus decision was not reached, the Minister authorized the Chief Executive Officer to refer the dispute to an Arbitration Tribunal for settlement pursuant to section 5 A (5) (a) of the Trade Disputes Act Cap 97.

The Dispute was referred to the Permanent Arbitrator on 20 July 2004 with the following terms of reference:

".....for settlement over the termination of Mr. Rajesh Karan with effect from 23 October 2003. The Union had viewed the management’s action as a breach of the Collective Agreement and is unjust and unfair and therefore should re – instate Mr. Kararn without any loss of benefits."

The Dispute was listed for a preliminary hearing on 11 August 2004. On that day the parties were directed to file preliminary submissions by 11 September 2004 and the Dispute was listed for hearing on 28 October 2004.

The Employer filed its preliminary submissions on 9 September and the Union did so on 1 October 2004.

On 28 October 2004 the Union made an application for the hearing date to be vacated. The basis of the application was that the Union had experienced difficulty in securing the attendance of its two witnesses. In addition the Union’s advocate was not able to attend due to Senate commitments. The Tribunal granted the application and the Dispute was relisted for mention on 19 November 2004.

When the Dispute came before the Tribunal for final hearing on 2 February 2005, the Union informed the Tribunal that the Grievor was not present. The Union informed the Tribunal that the Grievor had been advised of the hearing date but had left the country without giving any indication as to when he intended to return. The Employer was in a position to proceed with the hearing.

As a result the Tribunal indicated that the Dispute would be struck out with an order for costs to be made against the Grievor. The Employer sought costs thrown away of $260.00 in respect of petrol and accommodation costs for two witnesses who were present and who had travelled from the Western Division.

The Tribunal indicated that costs thrown away would be ordered in the sum of $260.00 to be paid by the Grievor to the Employer within 30 days.

In the event that the Dispute is re-reported by the Union, then the matter will not be dealt with by the Tribunal unless and until the costs have been paid.

AWARD

The Dispute is struck out. The Grievor is to pay the Employer the sum of $260.00 as costs thrown away within 30 days.

DATED at Suva this 3 day of February 2005.

Mr W. D. Chalanchini
ARBITRATION TRIBUNAL